B. Historical Context

2. The historical context of the Spanish Constitution of 1812 explains its origins and development. That historical context is set by the French Revolution and the Enlightenment. In retaliation for the execution of King Louis XVI of France on 21 January 1793 by the Girondins of the National Convention, King Charles IV of Spain joined other European monarchs in the War of the First Coalition against the First French Republic. Within two years, Spain had lost its part of the war–the War of the Pyrenees–against the French revolutionary army. Spain made peace with France under the Second Treaty of Basel of 22 July 1795, the terms of which coerced Spain to ally with France against Great Britain under the Second Treaty of San Ildefonso of 19 August 1796.

3. France, now under the reign of Napoleon, continued to war against the rest of Europe. French victories early in the Napoleonic Wars encouraged Napoleon to invade Portugal as part of the First French Empire’s continental blockade against British trade. Fearful of the implications, King Charles had his Prime Minister, Manuel Godoy, negotiate with Napoleon a further deal with France. The negotiation led to the signature of the Treaty of Fontainebleau on 27 October 1807, under which Spain would support France’s invasion of Portugal in return for minor territorial concessions. The deal allowed French troops to pass through Spain on their way to Portugal, but Napoleon used it as a cover to invade not only Portugal but also Spain. The occupation of Pamplona, Barcelona, San Sebastián and several other Spanish cities by French troops angered Spaniards, prompting the Mutiny of Aranjuez, which forced King Charles to dismiss Godoy and abdicate in favour of his son and rival for the crown, Ferdinand, Prince of Asturias, on 19 March 1808. Popular revolts continued though, culminating in an uprising by the people of Madrid against French troops on 2 May 1808.

4. King Charles, in the meantime, wrote to Napoleon, asking him to reinstate him. The new King of Spain, Ferdinand VII, also wrote to Napoleon, asking him for his endorsement. Realizing the vulnerability of the Monarchy of Spain, Napoleon wrote back to King Charles and King Ferdinand, asking them to meet him in Bayonne, which they did on 5 May 1808. Napoleon had King Ferdinand return the Crown to his father unaware that King Charles had already abdicated in favour of Napoleon. Napoleon then ceded the Crown to his eldest brother, Joseph, a regime change which he attempted to constitutionalize through the Bayonne Statute of 8 July 1808, a kind of charte octroyée—a basic law for and from Napoleon—that never had full effect (imposed constitutions (constitutions octroyées)).

5. By then, encouraged by the Bando de los alcaldes de Móstoles, Spaniards were up in arms against the French occupiers. Since Spain’s institutions of government, including the Council of Castile, were in disarray, people’s juntas formed everywhere across localities and provinces to expel the French invaders. Spanish victory at the Battle of Bailén on 19 July 1808 allowed these juntas, in turn, to delegate their authority to a Supreme Central Junta, established in Aranjuez on 25 September 1808 under the presidency of the Count of Floridablanca, José Moñin, revered Prime Minister under King Charles III. The Supreme Central Junta recognized King Ferdinand as Spain’s legitimate sovereign on the grounds that his renunciation had been by coercion and was, therefore, invalid. Moreover, it maintained that, since the sovereign was captive, national sovereignty, necessarily, reverted to the people. On that basis, the Supreme Central Junta considered itself competent to govern the affairs of the nation and, in particular, manage the guerrilla effort against the French.

6. However, the Battle of Ocaña on 19 November 1809 and a series of other defeats in southern Spain, forced the Supreme Central Junta to retreat from Seville, dissolve and transfer its powers to a five-member Council of Regency, which assembled in San Fernando (Cádiz) on 2 February 1810 under the presidency of General Francisco Javier Castaños with a mandate to convene a constituent assembly. That constituent assembly—the Cortes of Cádiz—drafted the Spanish Constitution of 1812. The historical context of the Spanish Constitution of 1812—a nation bereft of King and government up in arms against a republican invader—supported the principle of popular sovereignty as much as it supported a monarchical form of government through trias politica, the two major contributions of the Spanish Constitution of 1812 to modern constitutional law.

C. Cortes of Cádiz

7. The Cortes of Cádiz, a unicameral assembly elected by censitary suffrage extensive to Spain’s overseas territories, convened from 24 September 1810 to 23 January 1812 with a near impossible mission: to adapt the laws and customs of an absolute monarchy to the rights and freedoms of republican rule. It was indeed a near impossible mission because the Cortes of Cádiz split between those who, like Manuel José Quintana, wanted total constitutional reform and those who, like Gaspar Melchor de Jovellanos, merely wanted partial constitutional reform. The result was a moderately liberal constitution respectful of conservative traditions. Promulgated on 19 March 1812—a date of monarchical significance as the fourth anniversary of the rise to the throne of King Ferdinand—the Spanish Constitution of 1812 was, in many respects, an ideological contradiction for its time: it protected the monarchy while it restrained the monarchy. The compromise was a constitutional monarchy with a commitment to Montesquieu’s separation of powers, as is evident from the decree with which the constitutional convention opened.

D. Spanish Constitution of 1812

1. Features

8. The Spanish Constitution of 1812 has three salient features. First, it is a constitution by the people. It is not the work of government elites. In the absence of the King and with the machinery of government under foreign control, spontaneous people’s juntas had taken the lead on the constituent process. Secondly, true to the rationalist spirit of the period, it is a comprehensive constitution. With a total of 384 articles, the Spanish Constitution of 1812 is the longest of all Spanish constitutions. It resembles a rule book, especially when it concerns electoral matters. The Spanish Constitution of 1812, in fact, incorporates an electoral act. Thirdly, perhaps as a strategy to avoid a return to absolute monarchy, it is a rigid constitution. The constitutional amendment process is uniquely long and difficult, with no change being possible in its first eight years (rigid (entrenched) / flexible constitutions).

2. Principles

9. More important than its features are the principles which the Spanish Constitution of 1812 endorses. Under the chair of Diego Muñoz-Torrero, the drafting committee largely based the constitutional text on the various decrees that the Cortes of Cádiz were simultaneously enacting. Thus, the inaugural decree of the Cortes of Cádiz—the Decree of 24 September 1810—developed the principles that would later inform the text of the Spanish Constitution of 1812. These principles are three in number.

(a) Popular Sovereignty

10. First, further to the French Constitution of 1791, the Spanish Constitution of 1812 affirms the principle of popular sovereignty. And it does so twice, in the Preamble and again in Art. 3: ‘Sovereignty belongs to the nation, consequently it exclusively possesses the right of establishing its fundamental laws.’ Moreover, Art. 2 declares that: ‘[t]he Spanish nation is free and independent, and neither is nor can be the property of any family or person.’

11. Art. 1 defines the Spanish nation as the ‘re-union of all the Spaniards of both hemispheres’. Thus, Spain is the Spanish people and national sovereignty rests with them. The King, then, is King ‘by the grace of God and the Constitution’ under Art. 173, which he must swear to preserve and defend. At a more general level, Spain comprises a unitary jurisdiction under Art. 258, which provides that ‘[t]he civil, criminal and commercial code of laws shall be the same throughout the kingdom’ and, in so doing, establishes the principle of equity among Spaniards, irrespective of regional differences. ‘¡Españoles, ya tenéis patria!’ (‘Spaniards, you now have a fatherland!’) shouted the Cortes of Cádiz when they proclaimed the Spanish Constitution of 1812.

(b) Separation of Powers

12. Secondly, the Spanish Constitution of 1812 recognizes the separation of powers, though not as rigidly as the American Constitution. It establishes, by way of a form of government, a ‘moderate, hereditary monarchy’ under Art. 14. It splits up power into the now three traditional arms of government: the King to execute the law under Art. 16; the courts to apply the law under Art. 17; and, interestingly, in an attempt to reconcile conservative and liberal factions, the Cortes to make the law, with the King under Art. 15. The power to make law, then, is a shared rather than exclusive competence.

(i) Executive

13. Under Art. 16, the King is the chief executive: ‘[t]he power of executing, the laws is in the King’ (monarchical constitutions). The King can delegate his executive power to the Secretaries of State under Art. 171.16 and can request the advice of the Council of State under Art. 236. Art. 170 develops the competence of the King:

The exclusive power of enforcing and rendering the laws effective resides in the King, whose authority extends to whatever may conduce to the interior good regulation, and exterior security and defence of the State, consistently with the laws and the Constitution.

14. This power, Art. 171 breaks down into 16 heads. However wide in scope this provision may be, the King, under the Spanish Constitution of 1812, loses his once absolute and arbitrary power since he is now subject to the rule of law. That is clear from Art. 172:

The restrictions upon the regal authority are as follows:

1. The King, under no pretext whatsoever, can prevent the meeting of the Cortes, at the times or under the circumstances, directed by the Constitution; nor suspend nor dissolve them; nor, in any way whatsoever, check nor embarrass their deliberations. Those who are guilty of advising him to, or assisting him in any of these acts, shall be punished as traitors;

2. The King shall not leave the kingdom, without the consent of the Cortes; and, in case of so doing, shall be considered to have abdicated the throne;

3. The King cannot renounce, yield, deliver up, or make over, to any other person, the royal authority, or any of its prerogatives;

4. If, under any pretence whatsoever, he may wish to abdicate the throne in favour of the lawful heir, he cannot do it without the consent of the Cortes; he cannot grant, yield up, or exchange, any city, town, village, or part of the Spanish territory, however, small it may be;

5. He cannot make any offensive or defensive alliance, or special treaty of alliance or commerce, with any foreign power, without the consent of the Cortes;

6. Neither can he bind himself, by any treaty, to subsidize a foreign State, without their consent;

7. He cannot cede or make over the national property without consent of the Cortes;

8. He cannot, without a previous decree of the Cortes, directly or indirectly, impose contributions, or make loans, under any name or for any object whatsoever;

9. Neither can he grant any exclusive privilege to any person or corporation;

10. He cannot dispossess any corporation or individual of their property; neither can he disturb them in the enjoyment or direction and profit of it; and if, in case of necessity, for the general advantage of the public good, it should be required to convert that of an individual for a particular object, it cannot be done without a full indemnification, by just valuation of respectable persons;

11. The King cannot punish, in any manner whatsoever, or deprive any individual of his liberty, under any pretence; the secretary of State who signs and the judge who executes the order shall be responsible to the nation; and, in such case, punished as criminals against civil liberty;

12. Only in case of treason or any attempt against the security of the State, can the King give directions for personal arrests; and even then the offender must be delivered up, to a competent tribunal, within forty-eight hours;

13. Before marriage, the King shall advise the Cortes, to obtain their consent; in default of which he shall be understood to have abdicated the throne.

(ii) Legislative

15. The King, then, cannot meddle in the affairs of the Cortes. The Cortes are the legislature, which Art. 27 defines as ‘the junction of all the deputies who represent the nation, named by the citizens in the manner hereafter to be explained’. Indeed, the Spanish Constitution of 1812 goes to great length to explain the electoral system. It puts an end to the guild-like functional constituency and imperative mandate of the old order. The Cortes have three main features. They are unicameral, a fairly radical liberal feature since it reduces the will of the people to the one representative assembly and avoids the interference of an upper house under the control of the nobility and the church hierarchy (see also bicameralism). They are procedurally autonomous, with automatic annual convocation under Art. 104. And they are transparent, with all sessions open to the public under Art. 126.

16. The powers of the Cortes are in Art. 131:

The powers and duties of the Cortes are:

1. To propose and decree the laws and interpret and repeal them, when it shall be necessary;

2. To administer the oath to the King, and Prince of Asturias and to the Regency, according to the forms directed in their proper places;

3. To resolve any doubt which may occur as to the act or right of succession to the Crown;

4. To elect a Regency or Regent, in the cases pointed out by the Constitution, and prescribe the restrictions with which the Regency or Regent are to exercise the royal authority;

5. Publicly to acknowledge the Prince of Asturias;

6. To appoint a tutor to a minor King, when it may be directed by the Constitution;

7. To approve, before their ratification, the treaties of offence, alliance, subsidy and particularly those of commerce;

8. To grant or deny the admission of foreign troops into the kingdom;

9. To decree the creation or suppression of places in the tribunals established by the Constitution; and also the creation or suppression of public offices;

10. To fix, by proposals from the King, the proportion of sea and land forces for the year; determining the standing force in time of peace and augmentation in war;

11. To issue codes of established instructions to the army, navy and national militia, for their direction, under all circumstances;

12. To fix the expenses of the public service;

13. To establish the annual contributions and imposts;

14. To borrow money, in cases of emergency, on the credit of the nation;

15. To approve the division of the proportion of contributions to be levied on each province;

16. To examine and approve the returns of the receipts of the public monies;

17. To establish customhouses and the rates of duties;

18. To make the necessary dispositions for the administration, preservation and expenditure of the public funds;

19. To determine the value, weight, standard, impression and denomination of the circulating medium;

20. To adopt the system of weights and measures, which may appear to them most just and convenient;

21. To promote and encourage all descriptions of industry and remove the obstacles which may check them;

22. To establish a general plan of public education throughout the whole monarchy and approve that which is pursued for the instruction of the Prince of Asturias;

23. To approve the regulations for the general health and police of the kingdom;

24. To protect the political liberty of the press;

25. To make the responsibility of the secretary of State and other public officers, effective;

26. Lastly, it belongs to the Cortes to give or refuse its consent to all those acts and circumstances, in which, according to the Constitution, it may be necessary.

17. The Cortes have the power to make law under Art. 15: ‘[t]he power of making laws is in the Cortes, with the King’. The Cortes, thus, share the right of initiative with the King under Art. 171.14 whose power of veto, however, is not absolute as it ends with the third reading of a bill under Art. 149. The Cortes have exclusive competence over budgetary matters under Art. 131.12 and educational matters under Art. 370 and, importantly, they are the guarantor of the freedom of the press under Art. 371.

(iii) Judicial

18. The courts apply the law under Art. 17, which states: ‘[t]he power of applying the laws, in civil and criminal causes, exists in the tribunals established by law’. Under Art. 242, that adjudicative competence is exclusive. It is neither shared with the King nor the Cortes. This express provision in Art. 243 together with a requirement for courts to be established by law under Art. 247 both institute an independent judiciary able to safeguard the rule of law and due process of law. Moreover, judges have tenure under Art. 252 but they are nevertheless accountable under Arts 254 and 255.

(c) Confessional State

19. Thirdly, the Spanish Constitution of 1812, again in an attempt to engage conservative, traditionalist elements, establishes a confessional—Roman Catholic—state. Art. 12 states, conclusively: ‘The religion of the Spanish nation is, and ever shall be, the Catholic Apostolic Roman and only true faith; the State shall, by wise and just laws, protect it and prevent the exercise of any other’ (relation of religion to state and society).

20. The Preamble similarly acknowledges ‘all-powerful God, the Father, the Son and the Holy Spirit, author and supreme legislator of society’. Several other religious references appear elsewhere in the text.

21. These three constitutional principles reveal a moderately liberal constitution, one that unashamedly endorses the principle of popular sovereignty and the separation of powers model of governance but also one that is careful not to alienate a largely conservative popular base reverent to God and King. That state of contradiction is the subject of long and careful explanation in the Discurso preliminar—a kind of explanatory memorandum—that accompanies the text of the Spanish Constitution of 1812. This statement, under the collective authorship of the drafting committee but penned by Agustín de Argüelles, explains the Spanish Constitution of 1812 as an attempt to adapt the ancient laws of Spain to the Enlightenment. Thus, the statement refers to the laws of Spain’s foundational kingdoms of Castile, Aragon, and Navarre—from the Fuero Juzgo to the Siete Partidas—that protected rights and freedoms long before the House of Habsburg and later the House of Bourbon brought absolute monarchy to the Crown of Spain. Absolutism, in the end, proved too strong, even for the Spanish Constitution of 1812, which, apart from a couple of vague provisions in Arts 372 and 373, lacked a feasible enforcement mechanism.

3. Rights and Freedoms

22. The Spanish Constitution of 1815 recognizes rights and freedoms. But it does not list them consecutively. Instead, it presents a general clause, which it then develops throughout the text. Art. 4 is the general clause. It states: ‘The nation is obliged, by wise and just laws, to protect the liberty, property and all other legitimate rights, of every individual which composes it.’

23. The wording of this provision is reminiscent of Lockean thought. It is a classically liberal statement of negative liberty. The Spanish Constitution of 1812 breaks down this general declaration of freedom from the state into specific rights loosely scattered throughout the text.

(a) Civil Rights

24. In terms of civil rights, the Spanish Constitution of 1812 protects the inviolability of the home under Art. 306: ‘The house of no Spaniard can be taken from him, or destroyed, unless under particular circumstances, pointed out by law, for the public good, or in defence of the state.’ It also provides certain assurances in relation to the criminal law and procedure. These assurances are primarily intended to safeguard against arbitrary arrest: Art. 287, Art. 290, and Art. 293. Despite its liberal profile, the Spanish Constitution of 1812 does not recognize the right to trial by jury, too innovative a development for the period. It does, however, ban torture under Art. 303 (‘[n]either the rack, nor any violence, shall be used to extort confession’) and provide for prisoner welfare under Art. 297:

Prisons shall be constructed so as to secure, but not to distress prisoners; the alcalde shall therefore be careful to keep them in custody; and, in solitary confinement, those whom the magistrates shall order, but never in subterraneous or unwholesome dungeons.

25. The Spanish Constitution of 1812 recognizes a kind of freedom of expression under Art. 371, more akin to a freedom of the press: ‘Every Spaniard possesses liberty to write, print and publish, his political ideas, without any previous licence, permission or revision, under the restrictions and responsibility established by law.’

26. Of course, that freedom is not absolute because it is subject to Art. 12, which declares Spain to be a confessional state, ‘Catholic Apostolic Roman’.

27. In alignment with its individualistic interpretation of liberty, the Spanish Constitution of 1812 does not recognize any group rights, such as the freedom of assembly or the right to protest.

(b) Political Rights

28. In terms of political rights and elective rights, in particular, the Spanish Constitution of 1812 establishes universal active (adult male) suffrage under Art. 29: ‘This basis is, the people composed of those inhabitants who, by both lines, are natives of the Spanish dominions; of those who have letters of citizenship from the Cortes; as also those who are comprehended in Article 21.’

29. Interestingly, this provision extends the right to vote to all Spanish dominions, including, logically, Spain’s overseas territories since, under Art. 28, ‘[t]he basis of national representation is the same in both hemispheres’. In that sense, the Spanish Constitution of 1812 really does establish universal—worldwide—suffrage.

30. Passive suffrage, however, is subject to significant restrictions. Art. 91 imposes fairly appropriate criteria on the right to be elected: ‘A citizen, of above twenty-five years of age, in the full exercise of his rights; either a layman or secular priest, a native of the province or one at least who possesses property, and has resided in it above seven years’. Art. 92, however, does set property qualifications: ‘[t]o be a member of the Cortes, it is also necessary to possess sufficient real and personal property’. Elective rights aside, the Spanish Constitution of 1812 establishes an indirect election four-stage process under Chs III, IV and V: citizens who vote for parish electors, who vote for county electors, who vote for provincial electors, who vote for Diputados de Cortes or representatives, one per 70,000 persons, for a term of two years.

(c) Economic, Social and Cultural Rights

31. In terms of economic rights, the most fundamental assurance concerns the right to property under Art. 4. And, in terms of cultural rights, the Spanish Constitution of 1812 has an entire chapter (Chapter IX) for the promotion of public education, true to the Enlightenment spirit of the period. Thus, Art. 366 provides for the establishment of schools:

Introductory schools shall be established in every town throughout the kingdom, in which children shall be taught to read, write and cypher, the catechism of the Roman Catholic Religion, and a brief exposition of natural and civil duties and obligations.

32. And Art. 367 provides for the establishment of universities: ‘Measures shall also be immediately taken to found a competent number of universities and other establishments, for the promotion of literature and the fine arts.’

E. Implementation

33. Despite its sincerity as a moderate expression of liberal political thought, the Spanish Constitution of 1812 was only in force for about six years, spread across three different stages. The Spanish Constitution of 1812 was first in force from its promulgation on 19 March 1812 by the Cortes of Cádiz to its abrogation on 4 May 1814 by King Ferdinand, the very same King whose return to Spain the constitutional movement had longed for so long. Ironically, under the Decree of Valencia, King Ferdinand justified the abolition of the constitutional regime, including all the laws enacted by the Cortes, on the grounds that the constituent assembly had illegitimately transferred sovereignty from the monarch to the people.

34. Forced by a military rebellion—pronunciamiento—led by liberal officer Rafael del Riego on 1 January 1820 in Las Cabezas de San Juan, King Ferdinand swore to preserve and defend the Spanish Constitution of 1812 on 9 March 1820. And between 1820 and 1823—the Liberal Triennium—the Spanish Constitution of 1812 was in force again. That period, which started on 10 March 1820 with a Manifesto to the Spanish Nation by King Ferdinand, ended on 1 October 1823 with yet another royal manifesto. At the behest of the Quintuple Alliance between Russia, Austria, Prussia, the United Kingdom, and France at the Congress of Verona on 20 October 1822, King Louis XVIII of France invaded Spain with his Hundred Thousand Sons of Saint Louis to restore the absolute monarchy. The irony is that, years earlier, Russia and Prussia had both recognized the validity of the Spanish Constitution of 1812. Russia even formalized the endorsement in its Treaty of Velikiye Luki with Spain of 20 July 1812.

35. Years later, under the regency of Maria Christina of the Two Sicilies, King Ferdinand’s last wife, another pronunciamiento—the Mutiny of La Granja—forced the entry into force of the Spanish Constitution of 1812 on 13 August 1836. It remained in force until its replacement by the Spanish Constitution of 1837: 18 June 1837 (Spain).

F. Conclusion

36. The failure of the Spanish Constitution of 1812—a model political compromise—to remain in force accelerated the fragmentation of Spain into two opposing sides—liberals versus conservatives; republicans versus monarchists; separatists versus centralists; secularists versus religionists; politicians versus soldiers—in a semi-permanent state of civil war that lasted for a whole century thereafter: from the First Carlist War between 1833 and 1839 to the Spanish Civil War between 1936 and 1939 and beyond to the end of Francisco Franco’s rule and the promulgation of the present Constitution of the Kingdom of Spain: 6 December 1978 (Spain). The Spanish Constitution of 1812, then, was a failure internally. It was a success, though, externally.

37. Europe saw in the Spanish Constitution of 1812 the triumph of liberalism. Many were its admirers. Karl Marx, writing for the New-York Daily Tribune on 20 November 1854 (‘Revolutionary Spain—Part VI: Extraordinary Cortes adopts the Jacobin Constitution’) made no secret of his admiration for the text. Its core principles of popular sovereignty and monarchical form of government subject to the separation of powers soon became the subject of study among constitutionalists everywhere in Europe. The Spanish Constitution of 1812 informed the Norwegian Constitution of 1814 and the Portuguese Constitution of 1822 and was highly influential among the Carbonari revolutionary societies of Italy, which adopted it for the Kingdom of the Two Sicilies on 7 July 1820 and the Kingdom of Sardinia on 13 March 1821, in the early stage of the Risorgimento. Nikita Muravyov and the other Decembrists adopted it too in their revolt against Nicholas I of Russia on 26 December 1825. Its influence spread to the former Spanish colonies in America, with the Argentine Constitution of 1819: 25 May 1819 (Arg) and its successor, the Argentine Constitution of 1826: 24 December 1826 (Arg), the Constitution of Chile of 1822: 8 August 1822 (Chile), the Mexican Constitution of 1824, the Constitution of Bolivia of 1826: 26 November 1826 (Bol), and the Constitution of Uruguay of 1830: 28 June 1830 (Uru) as the most notable examples. Brazil’s Imperial Constitution of 1824: 25 March 1824 (Braz) also referred to the Spanish Constitution of 1812 through its Portuguese precedent. The Spanish Constitution of 1812 will forever remain important as Spain’s first constitution.